Biju Abraham v. The State of Kerala and Binu Appaloose

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943_ ## _CRL.MC NO. 99 OF 2020_ _CRIME NO.244/2018 OF Rajakkad Police Station, Idukki_ _AGAINST THE ORDER/JUDGMENT IN CC 271/2019 OF JUDICIAL MAGISTRATE OF_ _FIRST CLASS, (MUNSIFF MAGISTRATE COURT) ADIMALI_ ## _PETITIONER/ACCUSED:_ _BIJU ABRAHAM, S/O.ABRAHAM, KANATU HOUSE, RAJAKUMARI NORTH P.O., RAJAKUMARI, IDUKKI._ _BY ADVS. C.S.MANILAL SRI.S.NIDHEESH_ ## _RESPONDENT/STATE & DE FACTO COMPLAINANT:_ _1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _2 BINU APPALOSE, S/O.APPALOSE, PUTHENVEETTIL HOUSE, KURUVILA CITY, KULAPARACHAL P.O., IDUKKI DISTRICT._ _R1 BY SRI.ARAVIND V.MATHEW, PUBLIC PROSECUTOR_ _BY ADV SRI.S.JIJI_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.99/2020 2 ## **O R D E R** The petitioner herein is the accused in C.C.No.271 of 2019 on the file of the Judicial First Class Magistrate Court, Adimali. The aforesaid case arises from Crime No.244 of 2018 of Rajakkad Police Station, which was registered for the offences punishable under Section 420 IPC and Section 3 read with Section 17 of the Kerala Money Lenders Act. The allegation against the petitioner is that, the de facto complainant borrowed an amount of Rs.1,00,000/- from the petitioner herein for the purpose of construction of his house, for which the petitioner collected huge amounts as interest. It was also alleged that, at the time of giving the amount, certain blank cheques and two stamp papers signed by the de facto complainant were obtained by the petitioner. It was also alleged that, even though Rs.1,43,000/- has been re-payed by the de facto complainant the petitioner herein refused to return the aforesaid blank cheques and documents by Crl.M.C.No.99/2020 3 demanding huge amounts. Later, he filled up the blank cheque for Rs.93,000/-. On the basis of the same, he has threatened the de facto complainant with the legal proceedings against him. The aforesaid complaint was submitted in such circumstances. This Crl.M.C. is filed for an order quashing the aforesaid Annexure-A1 final report submitted by the police in respect of the aforesaid crime. Cognizance was taken by the learned Magistrate as C.C.No.271 of 2019. 2. Heard Sri.C.S.Manilal, learned counsel for the petitioner, Sri.Aravind V.Mathew, learned Public Prosecutor for the State and Sri.S.Jiji, learned counsel for the 2[nd] respondent. 3. The learned counsel for the petitioner contends that, the transaction between the parties are civil in nature and no offence under Section 420 IPC is attracted. It is a case where the de facto complainant had borrowed some amount from the petitioner. From the materials available, no intention to cheat the de facto complainant right from the inception can be found. As regards to the offences under Section 17 of the Kerala Crl.M.C.No.99/2020 4 Money Lenders Act, it was pointed out that, nowhere in the final report or the statements of the witnesses, it is mentioned that the petitioner is conducting a business of money lending. Only a single transaction has been mentioned herein, which cannot be treated as a money lending business under Section 17 of the Kerala Money Lenders Act. 4. On the other hand, the learned Public Prosecutor as well as the learned counsel for the 2[nd] respondent would oppose the said contention of the petitioner. The 2[nd] respondent vehemently opposes the contention that the question whether there was misuse of cheque collected from the de facto complainant is a question of fact which has to be examined during the course of trial and it is not a fit case to invoke the powers of this Court under Section 482 Cr.P.C is to be invoked. 5. The only question that arises is whether any materials are available on record to constitute the offences alleged against the petitioner herein. As regard to the offence Crl.M.C.No.99/2020 5 alleged under Section 3 read with Section 17 of the Kerala Money Lenders Act, it can be seen that the aforesaid provision applicable in cases where the accused carries business of money lending without licence. One of the basic requirements for attracting the said offence is that the accused must have been engaged in the business of money lending. Sub Section 7 of Section 2 defines money lending, which reads as follows: “(7).“money-lender” means a person whose main or subsidiary occupation is the business of advancing and realising loans or acceptance of deposits in the course of such business and includes any person appointed by him to be in charge of a branch office or branch offices or a liaison office or any other office by whatever name called, of his principal place of business and a pawn broker, but does not include―” (a) a bank or a co-operative society; or (b) the Life insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (Central Act 31 of 1956); or Crl.M.C.No.99/2020 6 [“(bb) the industrial Credit and Investment Corporation of India Limited incorporated under the Indian Companies Act, 1913 (7 of 1913);”]; (c) the industrial Finance Corporation established under section 3 of the Industrial Finance Corporation Act, 1948 (Central Act 15 of 1948) [(d) **********************************] (e) the State Financial Corporation established under section 3 of the State Financial Corporation Act, 1951 (Central Act 63 of 1951); or (f) any institution established by or under an Act of Parliament or the Legislature of a State, which grants any loan or advance in pursuance of the provisions of that Act, or (g) any institution in the public sector, whether incorporated or not exempted by the Government by notification.” 4. A joint reading of the aforesaid provisions would indicate that, one or two instances of money lending are not sufficient to conclude that the accused is carrying out business of money lending. The aforesaid position of law has been clearly settled by this Court in decision in **Ismail C.A v.** **Sakkeer Hussain and another (2017 (2) KHC 861).** Crl.M.C.No.99/2020 7 5. In this case, only single instance of money lending has been pointed out by the de facto complainant and therefore, it cannot be concluded that the petitioner was indulging in the business of money lending. In such circumstances, aforesaid offence is not attracted. 6. Next aspect is whether offence under Section 420 IPC is attracted. Basic ingredient to attract the aforesaid offence, is the existence of criminal intention to cheat the de facto complainant right from the inception. Going by the allegations in the complaint and also the averments in the final report, it can be seen that it is the de facto complainant who had borrowed some amount from the petitioner herein. It is true that the de facto complainant has made an allegation that the cheques collected from him has been misused by the petitioner by writing huge amounts in the cheque and initiated legal proceedings. However, while considering this aspect, the legal proceedings which have already been initiated by the petitioner herein are having some relevance. It is evident from Crl.M.C.No.99/2020 8 the records that the petitioner has submitted Annexure-A2 complaint before the Judicial First Class Magistrate Court, Adimaly against the de facto complainant for the offence punishable under Section 138 of the Negotiable Instruments Act. It is discernible from the said complaint that, a notice of dishonour of the cheque has been issued to the de facto complainant on 19.07.2018. In this case, FIS has been given by the de facto complainant on 06.08.2018, which is after the aforesaid notice. Apart from the above, the petitioner has also filed a civil suit. It is also now pending before the Munsiff Court, Devikulam as O.S.No.327/2018. When all these aspects are taken into consideration and particularly the timing of submission of this complaint, which is after receipt of the notice under Section 138 of the Negotiable Instruments Act, it can be seen that the present complaint is submitted only to raise a defence in the other proceedings. An over all analysis of the entire materials available on record would clearly indicate that the dispute between the parties are civil in Crl.M.C.No.99/2020 9 nature, which would not attract the offence under Section 420 IPC. It is also discernible that, there are no materials available on record to indicate any intention of the part of the petitioner to cheat the de facto complainant right from the inception. In such circumstances, I find that, the offence under Section 420 IPC is not attracted. Thus, I find that the entire proceedings initiated on the basis of Annexure-A1 final report is a clear abuse of process of court and accordingly this Crl.M.C is allowed. Annexure-A final report and all other further proceedings in C.C.No.271 of 2011 on the files of the Judicial First Class Magistrate Court, Adimaly is hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/14.12.21 Crl.M.C.No.99/2020 10 ## _APPENDIX OF CRL.MC 99/2020_ _PETITIONER ANNEXURE_ - _ANNEXURE A1_ _TRUE COPY OF THE CHARGE SHEET IN C.C.271/2019 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY._ - _ANNEXURE A2 TRUE COPY OF THE COMPLAINT ALONG WITH DOCUMENTS IN S.T.616/18 FILED BEFORE JFCM, ADIMALY._ - _ANNEXURE A3 TRUE COPY OF THE PLAINT IN O.S. 327/18 ON THE FILE OF MUNSIFF COURT, DEVIKULAM._ - _ANNEXURE A4 TRUE COPY OF THE I.A.1210/18 IN O.S.327/18 ON THE FILE OF MUNSIFF COURT, DEVIKULAM._ _ANNEXURE A5 TRUE COPY OF THE PETITION IN I.P 1/2019 ON THE FILE OF SUB COURT, DEVIKULAM._